Negotiating by positions means trying to impose a result (“with confession” / “without confession”) and calling it a win when the other side gives in. Negotiating by principles — the approach in Getting to Yes, by Roger Fisher and William Ury and the Program on Negotiation at Harvard — replaces rigidity with method: separate people from the problem, focus on interests, create options, and anchor on objective criteria. In criminal practice, this lowers the temperature, opens proportional solutions, and reduces collateral risk.
If you’re new here, our previous article on criminal negotiation showed how to compare offers with the no-deal scenario using BATNA and WATNA — a simple yardstick for deciding when to negotiate and when to litigate. It’s worth revisiting as background. Read the previous article.
Positions vs. principles: what changes at the table
Positions: “I want ANPP without confession,” “I only accept with a full confession.” The conversation stalls and every step back feels like defeat.
Principles: “I need to protect reputation and close the case fairly” and “I need accountability consistent with the evidence.” With interests on the table, legitimate paths appear (fact delimitation, calibrated responsibility, safeguards) and criteria emerge to support the deal.
The 5 most common mistakes in criminal negotiations
1) Arriving with a ready-made solution
Showing up demanding your exact model invites an impasse. Reframe your ask as an interest (protecting brand and people; proportional accountability) and bring two or three viable options that serve both sides.
2) Personalizing the conflict
“S/he is acting in bad faith” doesn’t help. Discuss conduct and evidence, not identities. Swap assumptions for verifiable descriptions: “the record shows a supervisory lapse, not a direct order.”
3) Bargaining without objective criteria
Haggling numbers and conditions in the air drains trust. Use independent standards (proportionality, agency practice, public precedents, internal policies) and write them into the agreement as references for verification.
4) Failing to generate mutual-gain options
Binary talk (take it/leave it) constricts outcomes. Create options before you decide: narrow the factual scope; assess forms of responsibility (commission/omission); define a performance schedule; agree on transparency and document custody.
5) Ignoring extra-criminal effects
Focusing only on penalties/measures and ignoring reputation, markets, and contracts is expensive. Integrate communications, compliance, and legal: who can access the confession, how the text is drafted, where it may circulate, and what safeguards prevent distortion.
Pro tip: revisit the foundations of the Program on Negotiation at Harvard to turn rigid positions into workable combinations of interests + options + criteria.
A real example: when principles unlock positions
An investigation targeted a fact inside the client’s company. She believed she had not committed any crime and refused to confess. The prosecutor, in turn, insisted there is no ANPP without confession. Two hard positions. Two closed doors.
We shifted the axis: we left the positions and put interests on the table. Defense: close the case without attributing a conduct she did not commit and protect the company’s reputation. Prosecution: obtain accountability consistent with the evidence and the agreement’s preventive function.
With interests clear, we opened options and sought criteria. The record pointed to a supervisory failure — not a direct order. We recalled that responsibility can be by commission or omission. From there, the client acknowledged an omission for not adopting sufficient preventive measures. The agreement closed the case without a confession to a non-existent commissive crime, and with documentary and communication safeguards to avoid noise outside the process.
The case turned not by stubbornness, but because we replaced all-or-nothing with well-framed interests, viable options, and objective criteria. That is principled negotiation in criminal practice.
Takeaway
Negotiating in criminal cases is not forcing the world into your thesis. It is aligning legitimate interests and drafting the agreement on options and criteria that hold up. When you drop rigidity and work with principles, better and safer solutions appear — for everyone.
